ISLAMIC CRIMINAL LAW (NH) |1

Concept of Crime
Definition of Crime
Jarimah : to do what has been prohibited b Shariah or not to do what has been ordered by shariah tp
be done for which punishment of hadd or tazir has been prescribed

Jinayah : a misdeed prohibited by Shariah whether it is committed against life, property or anything else

Terms related to crime

1. Masiyah (disobedience) : commission of prohibited act and the omission of an obligatory act. All
crimes are masiyah but not all masiyah are crimes.
2. Al Zanb(sin) : reward/punishment for commission of masiyah. All Masiyah are sin

Classification of Crime
Hadd
Crime punishable with fixed
punishment
Right of public/right of God
Mentioned clearly in Al-Quran
and Hadith
7 types of crime :
Zina,qazaf,sariqah,hirabah,shrub
al khamr, riddah, baghy
Hudud (depends on crime)
Fixed and cannot be reduced
Qisas Tazir
Crime punishable with a fixed Crime punishable with
punishment discretionary punishment
Right of individual Right of public
Mentioned clearly in Al Quran Not mentioned clearly in Al-
and Hadith Quran and Hadith
Murder & Hurt 3 types :
Masiyah(disobedience),
maslahah(public interest),
mukhlafat (delinquencies)
Qisas/diyat Tazir : corporal (death
punishment eg repeat many
times, sodomy(AH), mastermind,
rape), withdraw someone
freedom, financial, verbally and
other
Can be substitute to Diyat, the Not fixed . Depends on
family has right to pardon the discretion of judge. Can be as
offender low as pay compensation or
death sentence

Concept of Punishment
- Al-uqubah : infliction of determined from of penalty for violation of a legal order in order to
protect the interest of public.
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- Punishment is last resort

- Must first measure by block or control. How ? internal controls like belief in Allah and hereafter
or external controls like focus in prayer, perform fasting, payment of zakat

Condition for punishment

- Legal which is based on Islamic law (punishment permissible in islam)
- Strictly individualized
- Common (must be equal and similar to everyone except in certain cases)

Objectives of punishment
- Preventing harm is given priority then gaining benefit
1. Retribution (Al-Jaza/ganti rugi) look at past
Crime rouses anger of the society to the offender and feel sympathy with the
victim
Punishment is general retaliation of society to maintain peace and social order
If involve right of individual, punishment provide for satisfaction of victim &
family Whoever assaulted you, then assault him in the same way that he
assaulted you (Al Baqarah :194)
2. Prevention + deterrence (Al-Zajr) look future
Prevent the offender from re-committing the crime (specific) and prevent other
from doing the same crime(general)
It is based on speed which the accused is tried & punished and on the public
manner of the execution of punishment (execute in public)
3. Reformation + Rehabilitation (Tawbah)
Rehabilitate the offender from committing the crime
Obtained from principle of tawbah
4. Expiation
To clear someone sin with Allah
Whoever commits a crime deserving of hadd and receives its punishment in
this world, this will be its expiation
The offender who has been punished in this world will not be punished in
hereafter for same crime

Applicability of Islamic Criminal Law

1. Time

- Provision of ICL come into effect as soon as they are legislated & promulgated
- No retrospective effect in icl (punishment will be imposed on the basis of provision that exist at
time of commission of crime)
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- and never would we punish until we send messenger Al Isra : 15

- Retrospective effect applicable
1. dangerous offences threatening public peace & order
The punishment was awarded prior to the revelation of the relevant injunction.
Exception only applicable during the period of revelation of wahy.

2. For public interest which is the law benefit the accused .

Murder. It can be applied at any period of time provided the case not settled under old
provision.
Situation that benefit the accused
I. A new provision is promulgated before the sentence is passed (the crime
committed before the new come but new is lesser, follow the new)
II. Judgment is passed but later amendment made (crime committed before the
amendment, and the amendment benefit the accused, then follow)
III. Law is promulgated after the sentence has been passed and declaring the
offence legitimate act.
IV. A new law prescribe a punishment which is severe (no retrospective effect just
follow the old law during the crime committed.

(law that give benefit to accused will prevail)

2. Place

Division of state ? Dar Islam, Dar al harb, Dar al ahd

What is dar al islam ? country where entire or maj citizen is muslim or country when the ruler is
muslim even the majority is non muslim.
Citizen of Dar al Islam ? Muslim (faith) , Dhimmi (non muslim that stay and abide the Islamic law,
permanent , protected thru agreement) , Mustaman (non muslim come for temporary,
protected thru agreement)
Citizen of Dar al Harb ? Harbies ( do not believe in islam no agreement) Muslim ( AH : no
protection, Majority : still give protection to them )
Hukm of marriage ?
1. Harbi woman + muslim/dhimmi man = permissible if he people of the book.
2. Harbi man + dhimmi woman = permissible
AH view ?
1. DI : Muslim , Dhimmi liable in all crime , Mustaman only liable if right of individual
2. DH : ICL not applicable
3. Basis ? ICL only have jurisdiction in DI.
4. If commit in DI then run to DH ? Muslim, dhimmi liable, Mustaman no
Abu Yusuf view?
1. DI Icl applicable to Muslim, Dhimmi, Mustaman
2. DH- not applicable
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Majority view?
1. DI ICL applicable to all
2. DH Muslim still liable as the unlawful acts remain unlawful regardless place

3. Individual

Concept of equality in Islam

o No superiority of one individual over another
o Oh mankind, we have created you from male and female and made you tribes and
families that you may know each other. Surely the noblest of you with the most dutiful
of you (Al Hujurat : 13)
o People are equal like the teeth of a comb. No arab is nobler than a non-arab, save by
virtue of righteousness
Equality between head of state and subject
o Abu Bakar once said Oh people, I have become you ruler but I am no way better than
any of you
o History
Equality between male and female
o Same in certain crime
o Exception in certain crime, AH view
o Riddah : female (no death just imprisonment) , male (Death)
o ZIna : Female (no banishment as she cannot travel without mahram) , Male
(banishment)
Equality between muslim and dhimmis
o ICL applied to both Muslim and dhimmis
o Murder : Majority if a muslim kill non muslim , no qisas just tazir. AH - still qisas.
o Zina : Majority same punishment for muslim and non muslim, AH married and
unmarried non muslim , 100 lashes
o Qadhaf : Majority no diff, AH : non muslim, tazir.

Fundamental Element of Crimes

1. Legal element (al Rukn Al Shari)
o A provision which prohibiting an act of constituting such crime and declaring
punishment
o La jarimah wa la uqubah illa bi al-nas (no crime nor punishment without nass/provision)
2. Physical element ( Al Rukn Al Maddi)
o Doing an act that constitute crime
o Stages : Contemplation (Al tafkir), preparation (Al Tahdir), attempt (al shuru) : tazir ,
completion (al tanfiz) : depends either hadd,qisas,tazir
o Tawbah?
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All jurist agree

1. Hirabah : can remit the punishment (no hadd punishment) | Except for those
who return before apprehend them (Al Maidah : 34) | With condition : must
not violate individual right, surrender before capture, pair with good
behavior

2. Qadhaf: cannot remit the punishment

Dispute between jurists offences other than hirabah and qadhaf

1. Hanbali and 1 opinion of shafie : Similar with hirabah, can remit the
punishment have to fulfill 3 conditions mentioned above

2. Majority : cannot be merit, One woman come to prophet and confess she
committed zina, Rasulullah asked her to go back and raise her kid first and come
first to faced the hadd punishment

o Complicity
Plurality of offenders
Direct/indirect ?
Direct complicity
An accomplice directly participates in the commission of the material
part of a crime
Tawaffuq several offenders are inclined towards the commission of
same offence but no plan beforehand | liable only for their part
Tamalu accomplices work out a plan before hand | AH : must be
liable for own part , Majority : share all punishment equally
Indirect complicity
An accomplice who does not directly participate in the commission of
the material part of the crime but has a share in the cause of the crime
through agreement, instigation, abetment, cooperation
Punishment : Majority tazir , Malik if present at scene crime ,
consider as direct.
Negative complicity ? Maj: no liability at all as the crime happen not because of
our silent. Some jurists : depend on your power or authority. If u do have u will
be liable.
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3. Mens Rea (Rukn Al Adabi)

o A person should bear the consequence of crime that he committed with intention or full
awareness of such consequence. (Criminal Liability)
o Nobody is held responsible for crime he not committed. Whoever does wrong will be
recompensed for it An nisa : 123 | Exception in payment of diyat in case murder by
mistake and quasi intentional murder where the relatives must help the offender pay
o Bases of criminal liability
Act committed is unlawful
Committed with free consent
Committed by adult and sane person who can distinguish between right and
wrong.
o Subject of criminal liability
ICL hold responsible only those living persons who are under obligation
(mukallaf : adult,sane,can distinguish bad and good)
Victim (al majni alayh)
Can be person, group or institution
Animal ? the victim is the owner, if stray animals, government in the
owner.
Fetus ? causing miscarriage the fetus is the victim need to pay 5 camels
depend on age.
Dead person? Cannot be victim except injured the body of the dead or
accused the dead person of zina.
o Criminal intention v motive
Intent inclination of ones will towards the commission of a punishable
offence with the knowledge that the act is prohibited
Motive the circumstances which push the offence to commit a crime..
Effect of motive : Hudud (fixed, no diff) | Qisas (depends on family) | tazir
(fixed no diff)
o Effect of ignorance (Al Jahl)
Offender is accountable for the commission of a punishable act if he
understands that the act is unlawful . if he doesnt know it is unlawful, no
liability.
How to determine? Having knowledge? Based on possibility .
Mukallaf (adult,sane,who can enquire about hukm, treated and presumed to
have such knowledge)
La yuqbalu fi dar al islam al uzr bi al jahl (it is not expected in Dar al islam on
ignorance of Islamic law)
Exception (people live in exclusion(aborigine) or newly converted to islam)
o Effect of Mistake (Al-Khata)
Only a person who commits a crime with intention is liable for the puhishment
not the one who commit it without intention
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And there is no sin for you in the mistake you made unintentionally (33:5)
Exception in kill by mistake based on (4:92) , where you still need to free slave
and diyat to family of victim. To secure the family of victim
o Effect of forgetfulness (Al Nisyan)
Doing of a prohibited act due to forgetfulness is no sin & no punishment
Civil liability should stay to secure life & property of a person.
My Ummah has been forgiven for forgetting and mistakes Hadith
No liability, however if he recalls must qada(make up) otherwise punish
Nit liable in hereafter but liable in word except offence relating to ibadah which
based on nature instinct
o Effect of willingness to be victimized
A person who commits crime against the victim due to his willingness/consent
to be the object of a crime still liable for punishment
Except willingness abrogate the element of the crime (theft with willingness
become sadaqah , rape become zina)
If in case of right of individual still liable unless forgiven
AH , Malik , half shafie does not permit the act , still liable for qisas and diyat
as it is not his right to take soul.
Ahmad , half shafie Considered as pardon, remits the punishment, no liability .
but judge still can imposed tazir.
o Mercy Killing
Killing those who suffer from an irrecoverable / terribly painful illness based on
sympathy
By close relatives against their loved one, or by doctors
Motive is good
It is harm, no human life can be destroyed saved provided by shariah
Hanbali , half shafie no punishment for genuine cases with conditions :
No hear beat, lost all functions
Put in death through omission
Consent of victim/relatives
o Willingness to be injure
AH + Syafie considered pardon
If its lead to death intentional murder but no qisas (AH+ syafie = diyat | abu
yusuf + Muhammad = tazir | ahmad = pardon
o Suicide ?
Shafie + half hanbali : kafarah is taken from his property
and kill not the life which Allah has forbidden save with right (al israr-
33)
Attempted suicide tazir
Abetting suicide tazir or qisas
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Injuring oneself tazir (why ? our body is not own by us its belong to
Allah)

General Exceptions (ACT)

- Unlawful act become lawful or permissible and thus terminate the criminal liability
- Related to the performance of ones duty or the exercise of ones right
- Right-id that whose exercise which is lawful and whose relinquishment incurs no penalty (opton)
- Duty- performing it is obligatory & abandoning it incurs sin (have to do)
1. Legal defence
- To discharge ones duty by the use of proper force in order to oppose any transgression
to save ones life or other as well as exercise ones right to protect ones own property
or the property of others.
- If anyone attack you, you can counter attack but in the like manner as he attacks you
(Al Baqarah : 194)
- 2 men in fighting, 1st man took hand of 2nd man & put into his mouth and 2nd man
pulled out his hand the teeth of 1st man broken. The 1st man come see prophet to asked
for diyat but Raulullah say no it is act of self defence. Hadith
- Whoever died to protect his property, life, religion and honour he will be death in
syahid Hadith
- Right to kill to what extent ? cannot kill unless he want to kill also . must be
proportionate.
- If aggressor is child, insane or animal? If no other way. Malik,syafie,ahmad: no liability
at all | AH : civil liable (need to pay compensation as act of such is not an offence)
- Conditions?
1. Act of aggressor must be illegal
2. Transgression is committed not just expected
3. No other method to defend himself
4. Quantum of force must equal
5. Burden of proof lied on defender
2. Disciplining wife & children
o Right of husband and father as leader of family to prevent his family from indulging
unlawful act
o Obedience to husband is obligatory to all wife
o wife from whom you fear arrogance, advice them forsake them in bed and finally
strikes them (An nisa : 34)
o Nushuz : disobedience/disloyalty wife toward husband
o Husband has right to correction in 3 steps : admonition, boycotting, beating
o Disciplining wife
Matter wherein correction is allowed
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Beating is allowed in tazir crime only(not fasting in ramadhan) and cannot be

possibility only can when she actually commits the prohibited act.
Malik + AH : repeated crime
Shafie + Hanbali : a right of husband
Limit of beating ? not serious, not leave any marks, not hurt for several days,
private parts and face not allowed. Only light beating and if over limit husband
face criminal liability.
Can wife correct/beat the husband? Correct can but beat cannot as symbol of
respect.
o Discplining Children
Teach your child to pray when he is 7 years old and if he refused to pray at the
age of 10, beat him Hadith
Right of discipline given to guardian, father, instructor, teacher,mother
When? Before the age of puberty and only for fault he already committed not
for the one he is likely to commit in future.
Must be light beating.
If lead to death ?
Father/guardian Shafie + AH : liable discipline cannot cause death |
Malik + Ahmad : not liable , act is lawful
Instructor / teacher if didnt get permission he is liable , but if get
permission but excessive stil liable.
Mother ? AH Liable, Majority not liable but will be charged for child
abuse
3. Sports
o Teach your child swimming, archery and ridding horse 8:60
o A strong believer is better than the weak believer Hadith
o Not only allowed but encouraged and it is an imperative duty
o Death or injury ?
o Force and violence : must not break the rules of the games
o No force no violence : no liable

4. Medical Practice
o Fardh kifayah : a social necessity
o AH : social necessity and should be encouraged and must get permission from patient or
guardian
o Syafie + Ahmad : permitted by patient and done in good faith
o Malik : permission from authority and patient
o Conditions to be exempted from liability:
Qualified practitioner
Treat patient in good faith
Treatment must conform to the principles of medicines & medical practice
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Must get permission

o If doctor negligence? Obvious : liable , slight mistake : not liable

5. Duties of official
o Duties imposed by shariah on the ruler and they are normally carried out by the public
sevants/officers
o Not liable for discharging his duties but must in prescribed limit
o Hudud crime?
Establishment hudud is official duty
Executioner of hudd sentences is not liable as long as he not exceeds limit
If rulers ordered him does something unlawful and he does not aware of such
facts and belief he need to obey he is not liable
Liability of ruler(if he exceed limits) intention : liable | by mistake : diyat
obtained from him and his family and baitulmal
o Tazir crime?
Majority: same rule is applied in cases of establishing tazir punishment
If result to death , not liable
Shafie : liable for diyat as the reason for tazir is to reform not to kill

6. Vulnerable person
o Al ihdar = al ibahah = declare unprotected
o Applicable to life of person or parts of his body(theft) or property
1. Not protected due to certain conditions
2. Non existence of legal security (faith/agreement)
o Commission of certain offence which are liable to death or imputation of such organ
o Vulnerable person ? Harbi , murtad , zani muhsan, muharib, bahgy, offender liable to
qisas , thief
o Who can impose such act? Only authority except in case of bahgy all citizens can fight
against them
o If relatives do it ? (eg in case of qisas the relatives kill the offender back) no liability

General Exceptions (PERSON)

- Act remain unlawful but the person committing it is exempted from the punishment.
- A person guilty for an offence exempted due some reason
1. Coercion (Ikrah)
o Commission of unlawful act by a person that is contradictory to his consent & choice
o Types of coercion ? i. Proper coercion : both consent and choice of coerced person are
neutralize which is involved the life of coerced. Ii. Improper coerced : consent
neutralized but choice not.
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o Hanbali : coercion must involve real physical torture

o Majority : threat in itself is coercion in most cases coercion constitute kill or torture
o Conditions?
i. Threat should be so serious it neutralizes the consent of the person (killing,
grievous hurt)
Third party ? Majority : close relatives only . Malik : anyone
Property ? depends on circumstances if it was the only property u have
then it become coerce
ii. Immediate in nature (not in future)
iii. The person capable of conducting the threat
iv. Coerced person belief if he does not do it, the party will perform the threat.
- Legal implication al ikrah
i. Unaffected by coercion , still liable
Murder, amputation of limbs, grievous hurt
Slay not life which Allah has made sacred, save in course of justice
7:152
Malik,Ahmad, shafie- qisas
syafie, Abu yusuf-diyat
AH tazir
ii. Crimes become permissible
Eating and drinking prohibited food or drink
whoever forced, necessity or transgressing no sin upon him Al
Baqarah : 173
iii. Crime is exempted
Apart from above eg sariqah ,hirabah,zina

2. Necessity
- Commit in desperate condition (very hungry)
- Condition?
i. Serious threat than can affect life, limbs
ii. Presented and not expected (happening)
iii. No way out other than commit the unlawful act
iv. Should only proportion to necessity . cannot exceed limit.
- Legal implication of al darurah
iv. Unaffected by necessity , still liable
Murder, amputation of limbs, grievous hurt
Slay not life which Allah has made sacred, save in course of
justice 7:152
Eating human flesh ?
Malik, Hanafi - cannot
Syafie, Ahmad : can if muhdar (unprotected)
Syafie, hanafi : can even protected
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v. Crimes become permissible

Eating and drinking prohibited food or drink
whoever forced, necessity or transgressing no sin upon him Al
Baqarah : 173
vi. Crime is exempted
Apart from above eg sariqah ,hirabah,zina

3. Unconsciousness/intoxicant (AL Sukran)

o With intention take the intoxicant drink : liable for every offence he commits even if he
is the state of intoxicants
o Without intention : not liable to any criminal liability
o Civil liability still imposed

4. Infancy (Al Tufulah)

- Criminal liability depends on understand and freewill it differed from person age
1. Absence of understanding (sabiy ghayr mummayiz)
1 day old 7 years old
X liable to any criminal punishment only civil (compensation)
2. Infirm understanding (sabbiy mummayiz)
Able to distinguish between right & wrong but not full
7-15 years old (majority) | 7-18 years old (AH) or 19 (male) , 17 (female
Not liable for hadd & qisas only liable for tazir
3. Full power of understanding (baligh wa Rashid)
Fully liable

5. Insanity (Al Junun)

- Loss of understanding + mental disorder
- Total insanity : absolute incapable of understanding
- Partial : lunacy , idiocy, epilepsy (sometimes)
- Liability?
I. Develop simultaneously with commission no criminal liability but civil yes
II. Insanity develop after?
Before the verdict
Shafie + Hanbali = legal proceeding continues the criminal liability is
considered at time of commission
Maliki + hanafi = proceeding is suspended until his mental health
restored. (accused must be mukallaf the time legal proceeding taken
against him)
After the verdict
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Shafie + ahmad : execution must contine except in hudud case and

when the verdict is based on iqrar or confession, the execution
withdraw
Malik : court judgment postponed depend development of insanity. In
case of qisas and insanity is incurable (fully insane) , he need to pay
diyat but also depends on family
AH : execution of punishnment is postponed unless the execution has
begun . in case of qisas , it will be convert to diyat.